Third Circuit All But Immunizes TSA Screeners From Lawsuits for Abuse

The federal courts have had a very difficult time figuring out how people can seek redress against the TSA, either via policy challenge or challenge to specific abusive interactions with screeners. The Third Circuit of the U.S. Court of Appeals, which services New York armpits New Jersey, Delaware, and Pennsylvania, has taken that challenge to the next level with two decisions that work together to make it very, very hard for someone who was abused by TSA screeners to win a lawsuit.

[Edit – The media is reporting the ruling as “TSA agents can’t be sued for false arrests, abuse, or assault.” I disagree with this conclusion. Read on…]

Vanderklok v. United States (.pdf), 868 F.3d 189 (3rd. Cir. 2017) was, relevant to the discussion, a suit against a TSA screener himself. The plaintiff alleged, in brief, that a TSA screener got annoyed with him and told the cops he made a bomb threat, resulting in the plaintiff’s arrest. Vanderklok made a First Amendment claim, arguing that his words were what annoyed the screener, and therefore the screener having him arrested violated his free speech.

Constitutionally-oriented lawsuits against individual government agents are generally known as “Bivens” lawsuits, and the idea is that if the Constitution provides a right, then it implies that the courts should be able to hear a case against someone who violates those rights. The Third Circuit took to heart the U.S. Supreme Court’s direction that lower courts should hesitate to allow new kinds of Bivens lawsuits, and thus ended Vanderklok’s First Amendment challenge. There is a long test the Supreme Court uses to counsel as to when Bivens should be extended to another area, but the most important part of this test is whether Congress has created some other kind of remedy. If there’s another way to sue and be made whole, Bivens isn’t necessary. Despite it being doubtful that there was another way to sue, the Vanderklok court emphasized that “TSA employees are not trained on issues of probable cause, reasonable suspicion, and other constitutional doctrines that govern law enforcement officers,” and therefore should be off the hook for retaliation claims because they don’t know any better. (Don’t hurt yourself trying to appreciate the wisdom in that one.)

Poorly reasoned, but fine, if there is another way to sue. The Third Circuit resolved that issue today.

Pellegrino v. TSA (.pdf), 15-3047 (3rd Cir., July 11th, 2018) addressed the only potential other way to sue. Relevant to the discussion, it was a suit against the TSA itself (as opposed to Vanderklok, where an individual screener was sued). Suits against the government for money damages come under the Federal Tort Claims Act (FTCA), a law written by Congress discussing the terms under which one may use the federal courts for such a suit. The predicate for Pellegrino’s claim was similar to Vanderklok’s: a screener, annoyed with her, had her falsely arrested by the cops.

The FTCA allows for most types of personal injury claims (including civil rights staples like assault, false arrest, etc.) so long as the injury was caused by “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests” (28 U.S.C. § 2680(h)). However, the courts have been hesitant to find that TSA screeners are covered by this law, notwithstanding the fact that their job is literally to execute searches, because TSA searches are, in the courts’ view, different from traditional law enforcement searches. The Eleventh Circuit tossed several FTCA claims against the TSA of mine a few years ago, holding that TSA screeners are not “officers of the United States” (despite their job title literally being Transportation Security Officer). Corbett v. TSA, 568 Fed. Appx. 690 (11th Cir. 2014).

Today’s ruling in Pellegrino does the same, although for different reasoning. The Third Circuit found that the language the FTCA uses implies that Congress only intended it to cover law enforcement officers, and TSA is not law enforcement. This ruling has 2 problems: 1) Congress’ intent is only relevant where the statute is ambiguous. It strains credulity to argue that TSA screeners are not “empowered by law to execute searches,” in my view, but the Third Circuit concluded that “searches” is ambiguous enough to need to examine Congressional intent, 2) The FTCA was written before the TSA was created, so therefore Congress could not have had intent to exclude or exclude them, and 3) since Vanderklok foreclosed Bivens suits, there is now no recourse for those injured in the ways that Vanderklok and Pellegrino were injured.

Put another way, in New Jersey, Delaware, and Pennsylvania, there is now no recourse if a TSA screener intentionally, falsely calls the cops and says you threatened to blow up the airport, because they decided they don’t like your attitude. If you spend the night in jail because a TSA screener lied, you’ve got no lawsuit. Not against the TSA, the TSA screener, and probably not against the cops either.

The rulings don’t directly address more traditional Bivens claims, such as one for assault or false arrest. If a TSA screener beats you or physically restrains you, you may (may!) still have a suit in the Third Circuit. But malicious prosecution, retaliation, defamation, invasion of privacy, emotional distress, and conspiracy to do any of the same? Congress intended that the TSA not be held accountable for that, says the Third Circuit.

The decision was a 2-1 panel opinion, with a well-reasoned dissent to the now binding law in that circuit (long, but worth a read). I look forward to the plaintiff’s motion for rehearing en banc (by the full Third Circuit), for which I’ll be writing an amicus brief.

July 11, 2018 4

How Many Times Must TSA Be Spanked for Illegally Prohibiting Filming?

Michael Williams, traveling through EWR airport in Newark, N.J. a few days ago, was surprised when TSA screeners gave him a hard time for photographing his own belongings, and then threatened to have him arrested when he recorded the TSA screeners and managers themselves:

The video starts with Mr. Williams explaining his situation to a blue-shirt screener, and then 2 supervisors in suits walk up to him, and decree the following:

Listen, I’m not here to argue with you. I’m telling you what we’re supposed to do. I’m the lead terminal manager, and no, you are not allowed to take pictures of my officers. [If] my officer feels uncomfortable with you taking pictures because you are interfering with the screening process, my officer is correct, and you are wrong. Ok? Clear?”

The threat of arrest comes off-camera after Mr. Williams starts walking away, but the damage to his constitutional rights has already been done even without that threat: Mr. Williams’ taping was protected both by TSA rules and the First Amendment.

Some areas of the law are gray areas. Others are perfectly clear. Whether photography is allowed at TSA checkpoints is one of those that is perfectly clear. From the TSA’s Web site:

“We don’t prohibit public, passengers or press from photographing, videotaping, or filming at screening locations. You can take pictures at our checkpoints as long as you’re not interfering with the screening process or slowing things down. We also ask that you do not film or take pictures of our monitors.”

I contacted the TSA for comment on Mr. Williams’ video, and it was also perfectly clear to TSA Press Secretary Lisa Farbstein:

Hi Jon. Your inquiry was forwarded to me for response. Indeed individuals are permitted to film the checkpoint and the TSA officers who are working. The individual who [Williams] encountered will be reminded of that fact. Thank you for bringing it to our attention.

Even if the TSA didn’t want to allow photography at its checkpoints, doing so is probably First Amendment-protected speech that they cannot ban anyway:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.

Glik v. Cunniffee, 655 F.3d 78 (1st Cir. 2011) (internal citations omitted). The U.S. Court of Appeals for the Third Circuit, which encompasses New Jersey, agreed earlier this year.

This kind of nonsense happens all the time, including to me. Incidents of people being denied the right to take pictures or video are fastidiously documented by Photography Is Not A Crime (PINAC), and their archive of TSA abuse in this realm is well-populated. It sounds like the TSA needs to be sued over this, and they should probably be careful considering that I’ll have my license to practice law before the statute of limitations for this matter will expire.

In the meantime, at the least we can get a laugh out of the end of the video. The supervisor who came to tell him he could not film apparently doesn’t realize the passenger is still recording until the end, leading to this gem when the passenger says he’s going to forward video to the “FSD” (Federal Security Director — basically a high-level regional TSA director):

I hope you’re recording everything. Are you recording me now? Can you please erase that?

“Lordy, I hope there are tapes.”

November 27, 2017 10

DHS to Expand Security Interviews on International Flights?

Security Interview Sticker — Well-Behaved Travelers Get a Sticker After a Security Interview!

I was almost booted from a Christmas 2014 flight from London to New York for refusing to answer questions posed by airline staff (not customs) about what I would be doing in my “destination” (a.k.a., my home), and I was clearly told that failure to participate in their “security interview” would result in denied boarding. After the flight, I sued the U.S. Department of Homeland Security, who encouraged several foreign-flagged airlines at several “airports of interest” to implement these policies. The U.S. government immediately backtracked, saying in court that interviews were not mandatory and could not result in denied boarding — that these airline employees were mistaken.

That front has been quiet for the last year or so, until the media yesterday reported that airlines are increasing security for U.S.-bound flights starting today, including “security interviews:”

New security measures including stricter passenger screening take effect on Thursday on all U.S.-bound flights to comply with government requirements designed to avoid an in-cabin ban on laptops, airlines said.

Airlines contacted by Reuters said the new measures could include short security interviews with passengers at check-in or the boarding gate, sparking concerns over flight delays and extended processing time.

As it would be trivial for someone with bad intent to invent a story about where they were going, or simply leave off the part of their plans that involves blowing stuff up, the airlines are, apparently, displeased with this nonsense:

“We see this as a big issue for China Airlines,” Steve Chang, senior vice president…

It’s just inconvenient for the passengers,” [Korean Airlines] President and Chief Operating Officer Walter Cho told Reuters in Taipei.

“Unilateral measures announced without any prior consultation… That is something that is very concerning and disturbing.” [Alexandre de Juniac, CEO of IATA (International Air Transport Association)]

So what happens when a passenger refuses to participate in the security interview this time? Well, it just so happens that I’ll be on an inbound flight quite soon, so we’ll see, as I certainly won’t be participating, and I guarantee a lawsuit in 24 hours or less if denied boarding.

Update: DL inbound flight today, “interview” consisted of making sure I packed/watched my bags. Nothing new here except it was asked at the gate. Will look forward to hearing experiences by other travelers.

October 26, 2017 10

Terrorist Attacks Police Officer in Michigan Airport — What Could Have Prevented This?

Yesterday, it was reported that a Canadian national entered a Detroit-area airport, found a police officer, yelled “Allahu Ackbar!” and then repeatedly stabbed the police officer in the neck.

In the meantime, our government has focused on:

A “TRAVEL BAN” (emphasis Trump’s). But a ban on temporary visas for citizens of a half dozen Middle Eastern countries would not have excluded this Canadian Muslim terrorist (or any other terrorist, according to the U.S. Department of Homeland Security).
A “laptop ban,” because older x-ray equipment can make it difficult to distinguish a laptop battery from a block of C-4. The better solution being an upgrade of older x-ray equipment notwithstanding, every recent airport attack has either detonated a bomb before the security checkpoint or used an alternative weapon — like a knife.
A more thorough molestation when going through TSA checkpoints. Because despite all the other holes in TSA security, grabbing everyone’s genitals makes us feel safer, right?
Surveillance — which, apparently, doesn’t work.

Here’s what our government has not focused on:

Getting the hell out of the Middle East. Instead, we’re still selling arms to Saudi Arabia and now bombing more civilians than ever.
Fixing mental health in this country. Scratch that, fixing health in this country.

There seems to be a simple solution: spend less on war, ineffective TSA security, and creating a police state, and spend more on healthcare.

So why aren’t we doing this? Why don’t we, the people, the voters, insist on this?

June 22, 2017 7

Please, Don’t Go In The TSA’s Private Room!

One of the more interesting (sometimes, disturbing) parts of “my job” is that I get e-mails from people across the country on a regular basis describing abusive TSA practices. These accounts range from descriptions of the TSA’s usual pat-downs, of which the author was shocked to realize happen that way, to descriptions of clear violations of TSA procedure, thuggish attitudes, and down-right sexual assault. There is one common theme beyond blue gloves: a high percentage of the time passengers feel abused, it is when they go to “the private room.”

For those of you who have had a TSA full-body pat-down, you probably know the speech they give you: a description of how they’re going to touch you, a note that they’ll be using the back of their hands on your “sensitive” areas, a question as to whether you have any injuries or medical devices, and finally, an offer to conduct the screening in private.

For the love of god, please do not take them up on this offer.

Three reasons:

In the private room, there are no cameras, there is no supervision, and if you say the TSA screener inappropriately touched you, it is unlikely you will convince a TSA supervisor, a police officer, or a judge to believe you. Every checkpoint in the country has many cameras, and you can actually request footage from them by Freedom of Information Act request. If something goes wrong (well, more wrong than usual), this is your only hope for justice.
Sometimes, the TSA will insist that they conduct private room screening. In particular, this will happen if you alert the explosive trace detector. In this case, the private room screening will be even more invasive than usual. They will literally be grabbing your genitals with the front of their hands. Even if it results in missing your flight, do not go. Even if the TSA insists that you must, refuse. At some point, you have to draw the line — I urge you to draw it at this point or before. Let them throw a fit, call the cops, or whatever it is they threaten you with, but at the end of the day, they have to let you go.
Private screening allows the TSA to hide their pat-downs from everyone else, making it seem more rare and keeping the public less on notice of what may happen to them. By forcing the pat-down to be in front of everyone else, you are taking a small stand.

If you think I may be exaggerating, here’s an example of the kind of e-mail I get (warning: graphic):

This kind of sexual assault happens all the time, leading to a headline in 2011 where three different senior citizens in three different incidents accused the TSA of strip-searching them in the private room. But most of the time, stories like these get no media attention. The victim may file a complaint, and nothing happens.

Catching your flight is just not worth it. Please help me get fewer e-mails like this and spread the word.

P.S. – One more suggestion, if I may: tuck your shirt into your pants before a pat-down. If you do so, you won’t be asked to lift up your shirt, and you won’t feel their latex-coated hands on your bare skin.

June 5, 2017 15

Update: Newest TSA Carry-On X-Rays Can Indeed See Through Laptop Batteries

I just passed through a TSA checkpoint at Miami International Airport, where, during my pat-down after opting out of the body scanner, I was placed directly facing a monitor that showed a laptop that was being screened (notwithstanding that TSA policy is that such screens should be hidden from view of passengers). From that image, it was clear that components underneath the battery of the laptop were indeed visible to the operator, and looked more like this image posted by bomb-detection specialists DSA Detection:

In other words, lithium batteries are not completely opaque “black boxes” which airport x-rays cannot penetrate.

DSA Detection has been nice enough to publish a how-to guide to detecting explosives concealed in a laptop. While the guide doesn’t go through how to detect an explosive specifically concealed within a battery, it is clear that the x-rays can penetrate through the battery. Given that materials of different densities are color-coded differently, and given that the density of PETN is 1.77 g/cm3 and the density of C4 is 1.73 g/cm3, but the density of lithium metal is 0.53 g/cm3, there should be no reason why a properly calibrated x-ray with a well-trained and attentive operator cannot tell the difference between a lithium battery and a box filled with explosives.

Now, are the x-ray machines in the 10 airports subject to the current laptop ban of the newer technology which produces images like the one shown here, or the older that produces images like in my previous post? I must assume that if DHS has used any logic whatsoever, these 10 airports are using the older technology and that’s why they’ve been shit-listed. But there is no way all of Europe uses this older technology, and I truly hope that DHS’s European counterparts continue to resist the nagging of DHS to ban carry-on laptops anyway. DHS should be helping any airport with inferior technology or training to get up to speed, not treating everyone outside of the country as if they are inept and inferior (especially when comparing others to the TSA… you know what they say about those in glass houses…).

May 22, 2017 18

Exclusive: Laptop Ban Reaction to X-Ray Equipment Stolen by ISIS

Carry-On X-Ray Equipment. Courtesy: Narita Airport

On March 21st, 2017, the U.S. Department of Homeland Security ordered airlines flying to the U.S. out of 10 airports, mostly in Muslim-majority countries in the Middle East, to refuse to transport any electronic devices of iPad size or greater in their passenger compartments. This effective ban on in-flight laptop usage on these flights, all of which would be between 6 and 12 hours in duration, assuredly caused any airline who uses those airports as a hub to face massive losses as travelers rush to connect through Europe instead. For the last several weeks, DHS has allegedly been considering expanding the ban to all airports in Europe as well, a move which European officials seem to have talked our government down from.

What has been missing from the story is, “Why?” Authorities have only disclosed a generalized fear that laptops could be used to conceal explosives, and have expressly denied a specific threat. But laptops have been around for decades, and as surely any sophisticated terrorist has heard of timers, why does it matter if you ban them from the passenger cabin if you allow them in the cargo hold?

A commercial aviation security official that I have verified but will not publicly name has explained the rationale to me: x-ray equipment of the variety commonly used for screening carry-on baggage disappeared a few months ago from a location in the Middle East, and it is suspected (perhaps even recently confirmed, given the desire to expand the ban) that ISIS members have stolen the equipment such that they can study how to properly conceal an explosive. Given that a bomb smuggled in a laptop exploded at an airport security checkpoint in Somalia on March 6th, 2017, it appears DHS has concluded that the theft was related and laptops were the concealment method of choice.

X-rayed Laptop — An x-rayed laptop. The battery is in the lower right.

It’s not bad reasoning since lithium batteries are completely opaque to x-rays, and therefore a battery-sized metal box filled with explosives would look exactly the same [Edit – This is not true for the newest technology x-rays… read more…]. But, there’s three problems with the reaction that make the laptop ban the wrong idea:

Once the laptop ban was put in place, anyone who planned to use a laptop to conceal a bomb was tipped off and will simply try another approach. This is reminiscent of the failed “toner cartridge bomb,” after which the U.S banned toner cartridges from flights. But obviously, a toner cartridge is only what they chose that day… a stereo, Xbox, or, well, laptop, would have worked just as well. Likewise, just because they’re doing it in carry-ons now does not mean they won’t switch to checked baggage next.
A laptop battery actually holds similar energy to a small bomb. While it’s not easy to make a laptop battery release that energy all at once in an explosion, a fire in the cargo hold created by batteries malfunctioning (not Galaxy S7!) resulted in at least 2 deaths by plane crash so far (all-cargo, not passenger, flight, thankfully). By forcing all these batteries into the cargo hold where a fire cannot be rapidly detected and contained, DHS would be countering any deceased risk of terror with an increased risk of fire.
It is simply not economically viable. Taking away what would surely amount to millions of man-hours of productivity every year is simply not the solution (exactly $1.1B of loss, industry group IATA estimates, quite conservatively in my opinion). It would be far less economically impactful to swab every laptop that comes through the checkpoint for explosive trace residue.

So why was the stolen x-ray equipment kept a secret? I asked my source if there was some security reason for keeping the stolen x-ray equipment from the public, and was told, unequivocally, no. “It’s because the mom from the midwest planning to fly her kids to Disney would freak out. They are worried that people would stop flying if they knew.”

My thought would be that the public would be much more understanding if the government was more forthcoming. But apparently the U.S. government feels that you can’t handle the truth and therefore hides behind secrecy laws to withhold the full story. This hiding is, of course, illegal, since, with exceptions not relevant, to withhold information as “sensitive security information” (SSI) requires that the release of the information would be “detrimental to the security of transportation,” not detrimental to mom’s willingness to go on vacation (49 C.F.R. § 1520.5(a)(3)). The TSA, a sub-component of DHS, is well-known for using the · SSI designation in an · “inconsistent and arbitrary” nature, as well as merely to avoid embarrassment, so it is not particularly surprising when the parent agency does so as well. [I have reached out to the DHS press office, which has declined to comment on this story.]

(Note that my source did not specify whether this information was SSI, classified, or otherwise protected, but I assume it is presently SSI and not classified given my source’s role and reports that U.S. authorities have discussed the situation with airline officials, which would not be done for classified information.)

Putting together one more piece of the puzzle, it seems to me that the classified information leaked by President Trump to the Russians earlier this month was very likely the details (beyond that which are reported here and beyond my knowledge) about the how the government was able to infiltrate ISIS to investigate the use of the stolen x-ray machines. Most news organizations did not report the nature of Trump’s disclosure other than that it related to “a plot by Islamic State,” although the Washington Post actually did describe it as laptop-ban related. So at the same time as the American people are mislead about the risks of flying, the Russians were given more information than the airlines and airport operators who are responsible for actually keeping bombs off of planes.

So, to recap: the government lied to us when they said there wasn’t a specific threat, they withheld information from us because they thought we’d be scared, and they implemented a laptop ban that will be ineffective and expensive at best, dangerous (as a result of increased fire risk) at worst. Business as usual.

“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’ Presently a law student, he continues to advocate for travel and privacy rights. Twitter: @_JonCorbett, Web: https://professional-troublemaker.com/“

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May 22, 2017 10

Fully Briefed: Can TSA Refuse Body Scanner Opt-Outs?

This blog began in 2010 to document my lawsuit against the beginning of the TSA’s body scanner program. From that time until 2015, the body scanner was “optional” for all passengers — so long as you didn’t mind being molested by a blue-gloved screener during their “full-body pat-downs.” This was part of the reason that no court has struck down these body scanners as unconstitutional: because, they say, passengers are consenting to use them (even though that “consent” is coerced by offering the alternatives of “let us touch your junk” or “don’t fly”). But, at the end of 2015, the TSA announced that they would reserve the right to refuse to allow these body scanner “opt-outs” at their discretion, and I immediately filed suit.

There are two really interesting issues in this case that I hope may cause a wrinkle for the TSA:

The original body scanner rule in 2010 was issued without “notice-and-comment rulemaking,” a procedure required by Congress whereby agencies that make rules first have to ask the public for input. The U.S. Court of Appeals for the D.C. circuit ruled that the TSA violated this procedure and, although normally that would require them to stop enforcing the rule (i.e., stop using the body scanners), the Court, fearful that the body scanners actually protect us, simply ordered the TSA to take comment after the fact. The new body scanner rule limiting opt-outs was also issued without public comment, and I’ve asked the court to, this time, put some teeth into forcing the TSA to actually follow procedure before issuing a rule.
The TSA is arguing that it needs to be able to force some passengers through the body scanner because, they allege, it is more secure than a full-body pat-down. But, this is objectively untrue. Besides the fact that I proved the scanners to be beatable in 2012, think about this: if one alerts a body scanner, the result is… a pat-down of the area of the body that generated the alert! How could this possibly be more secure than a full-body pat-down that would have touched that area of the body and more? The function of the body scanners is to narrow down those people who do not need to be patted down to save time, not to make a pat-down more secure. Body scanners don’t find weapons — pat-downs do.

This case lives in the U.S. Court of Appeals for the Eleventh Circuit, and the procedure for cases there is a written brief filed by the person filing the case, an opposing brief filed by the other side, and then a reply brief again by the filer, after which the court may rule on the case. Yesterday I submitted my reply brief after nearly a year and a half of delay, and so, the case is now “fully briefed,” meaning the judges can decide it at any point (or can ask for the parties to argue in-person, or can ask for more evidence, or, basically, whatever they want). Realistically, I expect it more likely that they will decide without in-person arguments, probably towards the end of the summer. I’m not holding my breath — the game is rigged, and the TSA gets almost complete control over what evidence the court sees, some of which I don’t even get to see (wouldn’t want the public to see things like how often their testing shows the body scanners miss a weapon, because that would be, well, embarrassing).

Corbett v. TSA IV – Reply Brief (.pdf)

Corbett v. TSA IV – Appellee Brief (Redacted) (.pdf)

Corbett v. TSA IV – Opening Brief (article)

May 16, 2017 13

Corbett Files Amicus Brief in “Naked Man at TSA Checkpoint” Case

Although it is discouraging how many people go through TSA checkpoints and submissively comply with (or even show appreciation for) security theater, there are several Americans who have made loud statements. Interestingly, the name “John” seems to increase one’s likelihood of making a stand: John “Don’t Touch My Junk” Tyner, John “You Don’t Need My ID” Gilmore, yours truly Jon Corbett (if I do say so myself!), or in this case, a man named John Brennan.

In April 2012, Brennan found himself at Portland’s airport, opting-out of the scanner and allowing the TSA to pat him down. But, upon the completion of the pat-down, the ~~molester~~ screener tested his gloves for explosive residue, resulting in a false-positive.

False positives are not exceedingly rare (in fact, every positive has been a false positive, given that the TSA has found 0 terrorists since its inception in 2002), and the TSA has a procedure for when this happens: take you to a back room, and use the front of their hands to rub your genitals. No hyperbole here, folks: this is exactly the procedure, and the one thing I make sure all my friends and family know about TSA screening is that it is better to miss your flight than to go to the back room with a TSA screener. Regardless of what they threaten, do not go.

But Brennan had a better idea: he simply took off all his clothes, right there in the checkpoint, and asked the TSA if it looked like he had a bomb. Predictably, the TSA overreacted, refused to screen him, closed the checkpoint, called the police, and had him arrested.

Only problem is, nude protests in Oregon are completely legal, and a judge entered a verdict of acquittal without even letting the case get to a jury.

Dissatisfied with this, the TSA imposed a civil penalty against Brennan under a federal rule that punishes those who “interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties.” 49 C.F.R. § 1540.109. Brennan took the case to the U.S. Court of Appeals, where the TSA argues, with a straight face, that any “failure to obey” or causing of a “distraction” constitutes “interference” under the rule and subjects you to a fine.

Fuck that.

The U.S. Supreme Court has squarely rejected “contempt of cop” laws, whereby those who do not “obey” random orders of police officers can be fined. Chicago v. Morales, 527 U.S. 41 (1999). The idea that we should give TSA screeners more authority to force us to submit to their every wish than a police officer is absurd, offensive, and dangerous. As such, I’ve filed a motion to consider an amicus curiae (“friend of the court”) brief, where I’ve outlined for the Court how the TSA has abused the power they already have, and how an expansion of that power will allow TSA screeners to arbitrarily curtail the First Amendment rights (among other rights) of anyone at the checkpoint under threat of fine. (I can only imagine how many times I’d have been fined were the TSA confident they could do so merely for being annoying!). It also discusses the Morales case, above, which Brennan’s attorney didn’t bring to the court’s attention…

To the extent the public was injured on April 17th, 2012, it was not injured by John Brennan removing his clothes, but rather was injured by the TSA and airport police attempting to quash a constitutional right that Americans hold close to our hearts: our right to petition our government for redress. For the foregoing reasons, the Court should decline to allow the TSA to become a discount legislator, police officer, prosecutor, judge, and jury, and accordingly set aside the order levying a fine against John Brennan.

This was my first amicus brief ever, and they’re kind of fun to write because you have to be concise, but get to discuss only the issues that you personally care about. Would definitely do again!

Brennan v. D.H.S. – Proposed Amicus Brief of Jonathan Corbett (.pdf)

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April 11, 2017 16

So What’s This “New” TSA Pat-Down?

About a couple weeks ago, the TSA announced that it would be “enhancing” its pat-down by, basically, “touching your junk” a bit more. There was apparently enough concern about its intensity that the TSA warned police in advance that it might generate sex assault complaints.

You may have noticed this blog was conspicuously quiet on the matter, and that’s because of both conflicting reports as to the scope of the updated groping and because of some inside knowledge on what the TSA is up to. But, having gone through the TSA’s pat-down today and LGA, here’s the deal:

First, if you’re getting a pat-down because you alarmed the body scanner, it’s going to be a full-body pat-down despite the fact that the scanners were specifically designed to point out the specific area of the body upon which an item was detected. From what I could see at the checkpoint, this is a much briefer version of the opt-out pat-down, but still touched every area of the body.

Second, if you’re getting a pat-down for a reason other than alarming the body scanner (e.g., you opted out), the only difference I noticed was that the “groin search” used to involve several vertical back-of-the-hand swipes from your bellybutton to your crotch, it now is 3 horizontal swipes (from hip to hip) followed by 3 vertical swipes. It’s slightly more invasive, but given that the TSA was all up in your crotch before, it’s not that big of a change.

In conclusion, the only place you’re likely to notice a change is if you alarm the body scanner. Given that about half of people were getting patted down by this supposedly brilliant technology while I was watching today (and, of course, the pat-downs finding nothing), that may be significant if you weren’t already opting out.

Given that chances are you may get a pat-down anyway, may as well opt-out, eh?

March 19, 2017 43

Category: TSA